In re Clark , 38 N.Y. Sup. Ct. 198 ( 1883 )

Per Curiam :

The work in this case was done under the authority of chapter 872, Laws of 1872, which expressly authorized it.to be done by the commissioner of public works by day’s work, by contract, or in such manner as the said commissioner of public works might deem expedient. The only point argued by the appellant is that the provision of the act under which the work was done is unconstitutional, because it embraces one or more subjects not expressed in its title. This objection is not stated in the petition, and therefore is not available to the petitioner. (See Rich's Case, 12 Abb., 118 ; Miller's Case, Id., 121; Horne’s Case, Id., 121; In re. Eager, 16 N. Y., 109.)

In this last case, Mr. Justice Rapallo, writing the opinion of the court, says: “ The petitioners have taken the point that the assessment was not coniirmed by the common council, and that the act of 1861, which purports to dispense with such confirmation, is-unconstitutional by reason of not being properly entitled.' We cannot inquire into this objection for the reason that it is not stated in the petition, and consequently was not passed upon by the court below.”

Under that authority we are relieved from the necessity of considering the question of constitutionality; and as no other point is made, we are of opinion that the order of the court below should be affirmed, with ten dollars costs and disbursements.

Present — Davis, P. J., Beady and DaNiels, JJ.

Order affirmed, with ten dollars costs and disbursements.